FILED
SEPTEMBER 29, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Termination of the Parental ) No. 33894-1-111
Rights to ) (consolidated with
) No. 33895-9-111)
M.J. and M.J. )
) UNPUBLISHED OPINION
)
)
LAWRENCE-BERREY, J. -In A.E.'s first appeal to this court, she argued the trial
court erred when it terminated her parental rights. In In re Termination ofMJ. and MJ.,
187 Wn. App. 399, 348 P.3d 1265 (2015), we rejected some of her arguments, but
remanded for additional findings. Specifically, we directed the trial court to consider the
"meaningful role" incarcerated parent factor ofRCW 13.34.180(1)(f), and to then
determine whether A.E. was fit or unfit to parent her two youngest children.
In this, A.E.' s second appeal, she argues the trial court erred by not properly
considering the "meaningful role" incarcerated parent factor. She also argues insufficient
evidence supports the trial court's finding that she is currently unfit to parent her children.
In affirming, we determine that the trial court's findings are sufficient.
No. 33894-1-111; 33895-9-111
In re Parental Rights to MJ. & MJ.
FACTS
We previously set forth the basic facts of this case in our prior decision. We
therefore discuss those facts here only in a general fashion.
A.E. is the mother ofM.J. and M.J. The children were two years old (the boy) and
one year old (the girl) at the time the Department of Social and Health Services (DSHS)
commenced the dependency that was the forerunner to this termination action. DSHS
commenced the dependency action soon after A.E.'s arrest for murdering a young
woman. A.E. pleaded guilty to second degree murder, and her earliest release date is
December 2020.
Both children had significant problems that preexisted the dependency action. The
boy had severe emotional problems, and he manifested his problems with tantrums and
aggressive actions. The girl suffered from developmental delays. Because of the
children's significant emotional and developmental problems, maternal relatives were
unable or unwilling to provide care for the children, and the children Went through a
series of foster care placements.
Because the older boy's emotional issues were especially severe, he was evaluated
by a specialist. The specialist determined the boy suffered attachment issues due to being
moved frequently from caregiver to caregiver. DSHS concluded it was in the children's
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No. 33894-1-III; 33895-9-III
In re Parental Rights to MJ & MJ
best interests to find permanent placement as soon as possible, and that maintaining a
relationship with A.E. would exacerbate the children's emotional problems. Also, visits
to see the mother in prison were not advised because of the children's ages, the length of
the drive, and the need for overnight accommodations. The specialist believed that any
more than two visits per year would be bad for the children.
Despite these limitations in seeing her children, A.E. diligently communicated with
her children by sending them letters, pictures, and Christmas gifts. A.E. has done what
she could, post-incarceration, to have a relationship with her children.
In its original termination decision, the trial court expressed concern over how
long reunification would take, given A.E.' s lengthy prison term and need for services
even after she completes her term. The trial court also expressed doubt whether A.E.
could develop a meaningful relationship with the children, given the children's severe
emotional and developmental problems. The trial court concluded that termination of the
parental relationship was appropriate so as to find a permanent placement for the children.
A.E. timely appealed. We rejected some of A.E. 's arguments, but agreed with
others. Specifically, we remanded for the trial court to consider the 2013 amendments to
RCW 13.34.I80(1)(f). The amendments require the trial court to consider whether an
· incarcerated parent plays a "meaningful role" in a child's life based on the factors listed
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No. 33894-1-III; 33895-9-III
In re Parental Rights to MJ & MJ
in RCW 13.34.145(5)(b)(i)-(vi). MJ, 187 Wn. App. at 408. We directed the trial court
to make "some record" of its consideration of A.E.' s meaningful role in the children's
lives. Id. at 411. In the unpublished portion of the opinion, we directed the trial court to
make a new fitness or unfitness ruling once it completed its reconsideration of the
"meaningful role" factor. We gave the trial court discretion to base its decision on
existing evidence or to take additional evidence.
On remand, the trial court received additional evidence from A.E. and from the
court-appointed special advocate (CASA). A.E. provided two declarations, and the
CASA attached a neuropsychological evaluation of the boy. The trial court then issued
supplemental findings:
[A]lthough the mother has attempted to maintain a significant relationship
with her children, it is not in the children's best interests to continue the
relationship. The record at the termination trial was clear: the children have
no knowledge or recollection of their mother, they both suffer from a host
of developmental delays and disabilities that make maintaining any
significant relationship with her impossible, and the children cannot be
safely transported to visit her in order to develop or maintain any
relationship with her in any meaningful way.
In addition, the mother's lengthy incarceration time, coupled with the
children's young ages at placement[,] means there was no meaningful
relationship, from the child's [sic] point of view, to be maintained.
The court also finds, based on the court's review of the record at
trial, that the referrals prior to the mother's arrest on Murder [sic] charges
reflected a dysfunctional family home, marked by domestic violence, drug
abuse, violence to the children and general neglect. Coupled with the
serious and extreme special behavioral and developmental needs of the
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No. 33894-1-III; 33895-9-III
In re Parental Rights to MJ & MJ
children, it is unlikely that, even if the mother were released to the
community, she would be fit and able to parent her children in the near
future. The court finds her currently unfit and unavailable to parent as a
result. It is not in the children's best interests to maintain the parent-child
relationship, and continuing the relationship, despite the mother's efforts,
delays early permanency for them.
Clerk's Papers (CP) at 521-22. In its oral ruling, the trial court noted that it had
considered the factors in RCW 13.34.145(5)(b)(i)-(vi). Based on the findings that there
was no meaningful relationship from the children's point of view, and that A.E. is
currently unfit and unavailable to parent, the trial court again terminated A.E.'s parental
rights to the children. A.E. timely appeals.
ANALYSIS
A. INCARCERATED PARENT FACTOR: MEANINGFUL ROLE
Parental rights may not be terminated unless DSHS proves the six elements set
forth in RCW 13.34.180(1) by clear, cogent, and convincing evidence. RCW
13.34.190(l)(a)(i); In re Welfare ofA.B., 168 Wn.2d 908, 911-12, 232 PJd 1104 (2010).
Due to the limited nature of the prior remand, this appeal focuses narrowly on a portion of
the sixth element, the "meaningful role" factor contained within RCW 13.34.180(l)(f).
RCW 13.34.180(l)(f) requires DSHS to prove the following factor by clear,
cogent, and convincing evidence:
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No. 33894-1-III; 33895-9-III
In re Parental Rights to MJ & MJ
That continuation of the parent and child relationship clearly diminishes the
child's prospects for early integration into a stable and permanent home. If
the parent is incarcerated, the court shall consider whether a parent
maintains a meaningful role in his or her child's life based on factors
identified in RCW 13.34.145(5)(b)l 11 ••••
(Emphasis added.)
A.E. first argues the trial court did not properly decide how her efforts at
maintaining a meaningful role in her children's lives, despite her incarceration, affected
the children's prospects for early integration into a stable and permanent home. We
1
RCW 13.34.145(5)(b) defines a parent's "meaningful role" in terms of six
factors:
(i) The parent's expressions or acts of manifesting concern for the
child, such as letters, telephone calls, visits, and other forms of
communication with the child;
(ii) The parent's efforts to communicate and work with the
department or supervising agency or other individuals for the purpose of
complying with the service plan and repairing, maintaining, or building the
parent-child relationship;
(iii) A positive response by the parent to the reasonable efforts of
the department or the supervising agency;
(iv) Information provided by individuals or agencies in a reasonable
position to assist the court in making this assessment, including but not
limited to the parent's attorney, correctional and mental health personnel, or
other individuals providing services to the parent;
(v) Limitations in the parent's access to family support programs,
therapeutic services, and visiting opportunities, restrictions to telephone and
mail services, inability to participate in foster care planning meetings, and
difficulty accessing lawyers and participating meaningfully in court
proceedings; and
(vi) Whether the continued involvement of the parent in the child's
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No. 33894-1-111; 33895-9-111
In re Parental Rights to MJ & MJ
disagree.
The trial court's supplemental findings note that A.E. never had a meaningful role
in her youngest children's lives. The trial court also found that A.E. never could have a
meaningful role in their lives because of the visitation restrictions made necessary by the
children's emotional and developmental issues. Because A.E. had no meaningful role,
nor could her efforts change this fact, the court found that continuation of A.E.' s parental
relationship was futile and delayed early permanency for her children.
A.E. also argues the trial court erred in considering the best interests of the
children rather than her own efforts to remain involved in their lives. She appears to be
arguing that her efforts and interests should supersede the best interests of her children. If
this is her argument, it is refuted by RCW I3.34.145(5)(b)(vi), which allows the trial
court to consider "[w ]hether the continued involvement of the parent in the child's life is
in the child's best interest."
A.E. also argues the trial court erred because it failed to consider all six
factors in RCW 13.34.I45(5)(b). But the language of that section refutes her argument.
RCW I3.34.145(5)(b) provides, "The court's assessment of whether a parent who is
incarcerated maintains a meaningful role in the child's life may include consideration of
life is in the child's best interest.
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No. 33894-1-III; 33895-9-III
In re Parental Rights to MJ. & MJ.
the following [six factors]." (Emphasis added.) Further, it is apparent from the record
that the trial court considered four of the six factors. The court considered the first factor
when it considered A.E's efforts to be involved with her children's lives. The court
considered the fourth factor when it considered the information provided by therapists,
DSHS specialists, a CASA, A.E., and A.E.'s family. The court considered the fifth factor
when it considered the limitations in the support programs and treatment services
available to A.E. while she is incarcerated. The court considered the sixth factor when it
considered if it was in the children's best interests for A.E. to remain involved in their
lives.
This court instructed the trial court to make "some record" of its consideration of
the factors in RCW 13.34.145(5)(b). MJ., 187 Wn. App. at 411. The trial court has
clearly done this.
B. PARENTAL UNFITNESS
Parents have a constitutional due process of law right not to have their
relationships with their natural children terminated in the absence of an express or
implied finding that they, at the time of trial, are currently unfit to parent their children.
A.B., 168 Wn.2d at 918-20 (citing Santosky v. Kramer, 455 U.S. 745, 760, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982)). To meet its burden, DSHS is required to prove by clear,
8
No. 33894-1-III; 33895-9-III
In re Parental Rights to MJ. & MJ.
cogent, and convincing evidence that the parent's parenting deficiencies prevent the
parent from providing the children with basic nurture, health, or safety. In re Welfare of
A.B., 181 Wn. App. 45, 61,323 P.3d 1062 (2014).
Previously, the trial court found that A.E. is a binge drinker, and her use of alcohol
was a major contributing factor to her crime of second degree murder. The trial court
further found that A.E. cannot begin treatment for alcoholism until she is released from
custody, which is December 2020 at the earliest. Nor can she participate in attachment
therapy with the older boy to help him develop a secure attachment with her until after her
release. Nor can she have a psychological evaluation until after her release. Moreover,
the trial court found that A.E. will need an anger management or risk of violence
assessment, and this, too, cannot be done until after her release. To her credit, A.E. has
taken advantage of a number of services offered to her while incarcerated. But she will
not be able to enroll in and complete the necessary programs until years after her release
from prison.
Although the trial court did not explicitly find that A.E. 's parental deficiencies
prevent her from providing for her children's basic nurture, health, and safety, the trial
court's supplemental findings allow us to confidently imply this:
9
No. 33894-1-III; 33895-9-III
In re Parental Rights to MJ. & MJ.
The court also finds, based on the court's review of the record at trial, that
the referrals prior to the mother's arrest on Murder [sic] charges reflected a
dysfunctional family home, marked by domestic violence, drug abuse,
violence to the children and general neglect. Coupled with the serious and
extreme special behavioral and developmental needs of the children, it is
unlikely that, even if the mother were released to the community, she would
be fit and able to parent her children in the near future. The court finds her
currently unfit and unavailable to parent as a result.
CP at 522. The living conditions described in these findings are seriously detrimental.
For a parent to expose her children to such dangers is a failure to provide for their basic
nurture, health, and safety. And the fact that these problems have not been remedied by
enrollment and completion in the necessary programs permits the trial court to infer
current parental unfitness.
Although A.E. blames these problems on her ex-boyfriend and argues that many of
the alleged problems were determined by DSHS to be unfounded, the trial court had
substantial evidence upon which to find DSHS proved current parental unfitness by clear,
cogent, and convincing evidence. We will not disturb its supported finding on appeal. In
re Welfare of L.N.B.-L, 157 Wn. App. 215,243,237 P.3d 944 (2010).
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No. 33894-1-III; 33895-9-III
In re Parental Rights to MJ & MJ
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
j
WE CONCUR:
Fearing, C.J. Siddoway, J.
11